EEOC Appeal 2020001721

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tiffanie S.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 2020001721
Hearing No. 550-2019-00233X
Agency No. USM-2019-00799
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 11, 2019, final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. 	For the following reasons, the Commission AFFIRMS the
Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst, GS-0341-11, in the Agency’s Northern District of California office located in
San Francisco, California. Her immediate supervisor was the Administrative Officer, S1. Her
second-level supervisor was S2, the Chief Deputy United States Marshal. 	Her third-level
supervisor was S3, the United States Marshal.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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On July 10, 2018, Complainant filed a formal complaint alleging discrimination based on race
(Asian), national origin (Chinese), age (over 40), disability (blind), and in reprisal for prior
protected EEO activity when on June 5, 2018 she received the Agency’s Final Decision on a
Proposed Suspension for fourteen days based on the charges of Conduct Unbecoming a United
States Marshall Service Employee and Lack of Candor. Specifically, the Agency maintained that
on December 27, 2016, Complainant was determined to have sent an email to an Agency official
from her personal email account. Among other things, the email and attachment accused D1, the
Supervisory Deputy U.S. Marshal, of being capable of violence in the workplace, and of yelling
at and bullying S1, Complainant’s supervisor.2 S3, upon being made aware of the email, referred
the matter to the Agency’s Internal Investigation Unit (IA Unit).
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). 	Complainant timely requested a hearing.
The AJ assigned to the case, after issuing a notice of intent to issue a decision without a hearing,
determined, sua sponte, that the complaint did not warrant a hearing and over Complainant’s
objections, granted summary judgment in the Agency’s favor on November 4, 2019. The Agency
did not respond to the AJ’s notice of intent.
The AJ found that the complaint could be resolved without a hearing because no genuine dispute
of material fact or questions of credibility existed. Pursuant to an investigation and report by the
IA Unit, Complainant was found to have engaged in the misconduct. The AJ noted that the IA Unit
was not within Complainant’s line of authority or chain of command; its offices were not within
the Northern California District; the Chief Inspector and Deciding Official, A2, was in Ohio, the
Proposing Official, A1, and all of the inspectors connected with the investigation did not know
Complainant and were not aware of her protected categories until after the investigation
commenced.
The AJ further noted that the investigation included interviews, and the examination of documents,
electronic mail software, and electronic transmissions. Specifically, the investigation determined
that Complainant, using her personal email account, wrote the email and transmitted it; she did not
provide a plausible explanation for how the email was sent from her computer; and she lacked
candor when she sought to deny using her personal email. 	The investigation also found that
Complainant lacked candor when she denied stating that S3 had previously broken her self-inking
stamp.
In her response to the AJ’s notice of intent, Complainant argued, among other things, that the
Agency had insufficient evidence to prove its charges against her. Complainant maintained that
she could not have sent the email because she was not in the office on December 27, 2016. She
maintained that an unnamed Agency official sent the email on her behalf to tarnish her reputation.
She also maintained that she never accused S3 of breaking her stamp.
2 According to the record, the allegations against D1 were previously investigated and were not
substantiated.

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A2 sustained the charges and the 14-day suspension. In doing so, he relied on investigative findings
and conclusions, relevant Douglas factors, comparable Agency cases, the Agency’s table of
offenses, and Complainant’s replies to the charges. 	The AJ found that, other than speculation,
there 	was 	no 	evidence 	indicating 	that 	discriminatory 	animus 	played 	any role 	regarding
Complainant’s suspension. 	Moreover, the AJ noted that there was no evidence in this record
indicating that similar acts of misconduct by employees similarly situated to Complainant and of
different protected status were not subjected to similar suspension notices following investigations
by the IA Unit. The AJ noted that other employees had received suspensions ranging from 3 to 45
days.
The AJ emphasized that Headquarters, not Complainant’s local supervisors, handled the
investigation and the discipline. 	Aside from forwarding the report of Complainant’s alleged
misconduct to the IA Unit, the AJ found no evidence that S3 or any other local official was
involved. Likewise, with respect to her reprisal claim, the AJ found that none of the individuals
within or outside the investigative process had been named by Complainant in any of her previous
EEO complaints.
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
On appeal, Complainant argued, among other things, that she unintentionally left her personal
email account open on her government computer, and that someone else sent the email from her
computer while she was on leave on December 27, 2016. She also argued that S3 used A2 as a
cat’s paw in order to retaliate against her for a favorable decision that she received from the Office
of Federal Operations (OFO) on an unrelated matter.3 S3, according to Complainant, was
infuriated after she prevailed in February 2018.
The Agency argued on appeal that its final order should be affirmed.
ANALYSIS AND FINDINGS
In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes.
3 Under certain circumstances, the cat’s paw theory of liability holds an employer liable for the
animus of an employee or supervisor, who was not charged with making the ultimate employment
decision.

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In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s
factual conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).
We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S.
317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material”
fact has the potential to affect the outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. For reasons that will be discussed
below, we find that the AJ correctly determined that there were no genuine issues of material fact
or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing
was appropriate.
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). 	Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804
n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is a pretext for discrimination. 	Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

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To meet her ultimate burden of proving that the Agency’s actions were discriminatory,
Complainant 	needs 	to 	demonstrate 	such 	“weaknesses, 	implausibility, 	inconsistencies,
incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of
Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017).
Assuming, arguendo, Complainant established a prima facie case of discrimination based on race,
national origin, age, disability, and reprisal, we find that the Agency articulated a legitimate, non-
discriminatory reason for her suspension as was set forth above. 	Complainant simply has not
provided any evidence that raises a genuine issue of material fact that her protected EEO categories
played any role in her suspension. Therefore, we find no evidence of pretext, and find that she has
not established that she was subjected to discrimination. As the AJ correctly noted, the individuals
who conducted the investigation and who proposed and issued the suspension were independent
and separate from Complainant’s local managers. 	There is no evidence indicating that
discriminatory animus played a role in their actions.
Complainant argued that she was not the individual who sent the email in question because she
was not in the office on the day in question; however, as the AJ noted, the investigation determined
that the email was sent from Complainant’s personal email account not necessarily from her work
computer. A2, in his letter sustaining the charges and suspension, stated that Complainant did not
provide a logical explanation for how the email was sent from her personal email account. On
appeal, Complainant, for the first time, indicated that she unintentionally left her personal email
account open on her work computer. Complainant, however, provide no evidence to support this
claim. We note that, in addressing an Administrative Judge’s issuance of a decision without a
hearing, a complainant’s opposition must consist of more than mere unsupported allegations or
denials and must be supported by affidavits or other competent evidence setting forth specific facts
showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. Moreover, even
if Complainant’s assertion that the investigation incorrectly concluded that she sent the email, we
find no material evidence that would create a genuine issue of fact that such an error was the result
of discriminatory animus, and not simply a mistaken interpretation of the evidence. As the
Commission has repeatedly held, pretext analysis is not concerned with whether the actions were
unfair or erroneous but whether the actions were motivated by discriminatory animus. Gregg B. v.
Dep’t of the Army, EEOC Appeal No. 0120151783 (June 7, 2017); Andrews v U.S. Postal Serv.,
EEOC Petition No. 03980017 (May 28, 1988).
We also find that, with respect to Complainant’s assertion that S3 retaliated against her either
directly or by using A2 as his cat’s paw because of her prevailing in an EEO complaint filed against
the Agency, she did not establish a genuine issue of material fact. Complainant without providing
any supporting evidence or dates maintained that S3 pressured S1 to get her to drop her EEO
complaint, and that he was angry when she prevailed in February 2018. She argues that it was not
a coincidence that her proposed suspension occurred approximately one-month after she prevail
on her EEO complaint. 	S1, who supported Complainant’s discrimination claims, stated that S3
“retaliated toward [Complainant] for not dropping the prior EEO case and used his influence as
Marshal with district subordinates and the IA investigator which led to her 14-day suspension.”

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S1, however, did not provide any evidence to support her contention. She also did not state that S3
pressured her to get Complainant to drop her case, nor did she state that S3 was angry after the
OFO decision was issued. In fact, S1 stated that she had no knowledge of the February 22, 2018,
OFO decision.
Upon review of the record, we find that there is no genuine issue of material fact presented here.
We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not
find in her favor. Therefore, we find that the AJ’s issuance of a decision without a hearing was
appropriate.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final order finding that Complainant did not establish
discrimination as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. 	The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. 	The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your request for reconsideration.

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The Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:
______________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
August 17, 2020
Date